Estoppel - Proprietary estoppel - Farming family - Promises and representations to convey land by will and guarantee funding for farming - Certainty - Terms of assumption - Expectation of inheritance - Encouragement - Detrimental reliance - Defendant resiling from expectation - Where resiling is unconscionable - Equity - Relief - Constructive trust required to satisfy equity arising - Real property - Whether plaintiff was a tenant at sufferance

Legislation:

Family Provision Act 1972 (WA)

Result:

Defendant holds Burracoorong on trust for the plaintiff
Defendant to transfer Burracoorong to the plaintiff on condition plaintiff pays annual sum to defendant (or to defendant's wife if defendant predeceases wife)
Calculation of annual sum subject to review
Counterclaim dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr M N Solomon SC & Ms K A T Pedersen
Defendant: Mr J C Yeldon

Solicitors:

Plaintiff: Hotchkin Hanly Lawyers
Defendant: Dwyer Durack

Case(s) referred to in judgment(s):

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 88 ALJR 552.
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Broadway Pty Ltd v Lewis [2012] WASC 373.
Browne v Browne [2017] WASC 297.
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 90 ALJR 770.
Currie v Currie [2017] WASC 312.
Delaforce v Simpson‑Cook [2010] NSWCA 84; (2010) 78 NSWLR 483.
Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285.
Donis v Donis [2007] VSCA 89; (2007) 19 VR 577.
Evans v Braddock [2015] NSWSC 249.
Evans v Evans [2011] NSWCA 92.
Fazio v Fazio [2010] WASC 263.
Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712.
Gillett v Holt [2000] 2 All ER 289.
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101.
Grundt v The Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641.
Jennings v Rice [2002] EWCA Civ 159.
Jones v Dunkel (1959) 101 CLR 298.
Pascoe v Turner [1979] 2 All ER 945; [1979] 1 WLR 431.
Priestley v Priestley [2017] NSWCA 155.
Ramsden v Dyson (1866) LR 1 HL 129.
SEAA Enterprises Pty Ltd v Figgins Holdings Pty Ltd [1998] 2 VR 90.
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505.
Sledmore v Dalby (1996) 72 P & CR 196 CA.
Sullivan v Sullivan [2006] NSWCA 312.
The Commonwealth v Verwayen (1990) 170 CLR 394.
Thorner v Major [2009] UKHL 18.
Vinden v Vinden [1982] 1 NSWLR 618.
Waddell v Waddell [2012]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Browne v Browne [No 2]

Details

AGLC: Browne v Browne [No 2] [2017] WASC 375
Case: [2017] WASC 375
Decision Date: 21 DECEMBER 2017

CaseChat Overview and Summary

The case involved a dispute between siblings over land that had been the subject of promises and representations by a deceased parent concerning inheritance and funding for farming. The plaintiff, Browne, sought a declaration of rights and interests in the property, as well as an account of profits. The defendant, also Browne, resisted the claims, arguing that any promises made were vague and uncertain. The dispute was heard in the Supreme Court of Queensland. The legal issues centred on whether the deceased parent's promises and representations constituted a proprietary estoppel, and if the plaintiff's reliance on those promises was detrimental and unconscionable for the defendant to resile from. The court had to determine the certainty of the terms of the assumption, the expectation of inheritance, and the encouragement provided by the deceased parent. The court concluded that the deceased parent's promises and representations were clear enough to constitute a proprietary estoppel. The plaintiff's reliance on these promises was considered detrimental and unconscionable for the defendant to resile from, leading to the establishment of equity in the plaintiff's favour. The court ordered the creation of a constructive trust to satisfy the equity, ensuring the plaintiff's rights and interests in the property were recognised. The court also found that the plaintiff was not a tenant at sufferance but held rights under the proprietary estoppel. This decision underscores the importance of clear communication and the potential consequences of vague promises in family property disputes.

Orders